Exhibit 10.64


 


EMPLOYMENT AGREEMENT


 


THIS
EMPLOYMENT AGREEMENT (“Agreement”) is made on this 10th day of April, 2008 (the
“Effective Date”), by and between AVI
BioPharma, Inc., an Oregon corporation, with its principal office
at 1 SW Columbia Street, Suite 1105, Portland, OR  97258 (“Company”), and Ryszard Kole, 203
Longwood Drive, Chapel Hill, NC 27514 (“Employee”).


 


RECITALS:


 


The Company
desires to hire the Employee as Senior Vice President of Discovery Research and
the Employee desires to accept such position under the terms and conditions
stated herein.


 


NOW,
THEREFORE, in consideration of the mutual benefits contained herein, the
sufficiency of which the parties acknowledge, the parties hereby agree as
follows:


 


AGREEMENT:


 


1.             Employment Term.  The term of employment (“Term”) shall
commence on the Effective Date and shall continue until terminated in
accordance with Section 12. 
This Agreement establishes an “at will” employment relationship between
the Company and the Employee as such term is defined and used under Oregon law.


 


2.             Duties.  Employee shall be employed as Senior Vice
President of Discovery Research and shall have such duties as are customarily
associated with that position, including oversight as line manager of all
biology research personnel and such other duties as may be assigned to him from
time to time by the Company’s Chief Executive Officer (“CEO”) and the Board of
Directors of the Company (“Board”). Employee shall be a direct report of the
Company’s President or CEO. Employee shall devote substantially all of his
business time to the service of the Company throughout the Term.  Employee and Company acknowledge and agree
that (i) Employee may hold certain offices within certain entities as set
forth on Exhibit A to this Agreement,  (ii) Employee’s devotion of reasonable
amounts of time in such capacities, so long as it does not interfere with his
performance of services hereunder, shall not conflict with the terms of this
Agreement, and (iii) Exhibit A may be amended from time to
time by agreement of the parties.


 


3.             Compensation.


 


(a)           Base
Compensation.  During the Term the
Company shall compensate the Employee at an initial annual salary of two
hundred thirty-five thousand dollars ($235,000.00), payable in accordance with
the Company’s payroll practices in effect from time to time, and less amounts
required to be withheld under applicable law and requested to be withheld by
the Employee (as increased from time to time, “Base Compensation”). The
Employee’s Base 


 

















 


Compensation shall be subject to review for potential increase (but not
decrease) on an annual basis. Except as otherwise provided in this Agreement,
the Base Compensation shall be prorated for any period of service less than a
full month.


 


(b)           Bonus.  The Employee shall be eligible for an annual
bonus of up to 25% of Employee’s Base Compensation, which bonus shall be paid
upon achievement and satisfaction of goals and objectives established upon
mutual agreement of the CEO, Employee and the Compensation Committee of the
Company’s Board.  Such goals shall be
established concurrently with the goals and objectives of the Company’s other
senior executives.


 


(c)           Equity
Compensation.  On the Effective Date,
the Employee will be granted options to purchase one hundred fifty thousand (150,000)
shares of the Company’s common stock (the “Options”) under the Company’s 2002
Equity Incentive Plan (the “Plan”), with an exercise price at the fair market
value of the Company common stock on the Effective Date.  Subject to accelerated vesting or termination
as set forth herein, the Options shall vest in equal annual installments over
four (4) years.  The exercise price
of the Options and all other terms and conditions associated with the Options
shall be determined in accordance with the Plan and grants (the forms of which
are annexed hereto as Exhibit B and Exhibit C,
respectively). To the maximum extent possible, the Options shall be Incentive
Stock Options.


 


4.             Expenses.  The Company will reimburse Employee for all
expenses reasonably incurred by him in discharging his duties for the Company,
conditioned upon Employee’s submission of written documentation in support of
claimed reimbursement of such expenses, and consistent with the Company’s
expense reimbursement policies in effect from time to time. The Company will
reimburse the Employee up to sixty-five thousand dollars ($65,000) for
reasonable expenses incurred in 2008 to relocate Employee, Employee spouse and
parts of Employee’s and Employee Spouse’s household in a manner compatible with
Employee’s duties hereunder to the city where the Company’s primary research
facility is located (“Facility Location”), including the reasonable and
customary costs of selling his North Carolina residence (but not vacant home
carrying costs), shipment of personal effects to the Facility Location, and the
customary closing costs associated with the purchase of a residence in the
Facility Location.


 


5.             Benefits.  Subject to eligibility requirements, Employee
shall be entitled to participate in such benefits plans and programs as adopted
by the Company from time to time and shall be eligible for paid vacation of
four (4) business weeks (20 business days) annually; provided,
however, if Employee does not use all available vacation in any
given year, Employee may roll-over up to one business week (5 business days) to
the following year, the parties intending that Employee shall have an aggregate
of five (5) business weeks (25 business days) of paid vacation in any year
following 2008.


 


6.             Confidentiality.


 


(a)           In
the course of his employment with the Company, it is anticipated that Employee
may acquire knowledge (both orally and in writing) regarding confidential
affairs of the Company and confidential or proprietary information including: (i) matters
of a technical nature, such as know-how, inventions, processes, products,
designs, chemicals, compounds, 


 

















 


materials, drawings, concepts, formulas, trade secrets, secret
processes or machines, inventions or research projects; (ii) matters of a
business nature, such as information about costs, profits and pricing policies;
(iii)  markets, sales, suppliers, customers, plans for future development,
plans for future products, marketing plans or strategies; and (iv) other
information of a similar nature which is not generally disclosed by the Company
to the public, referred to collectively hereafter as “Confidential Information.”
“Confidential Information” shall not include information generally available to
the public. Employee agrees that during the term of this Agreement and
thereafter, he (1) will keep secret and retain in the strictest confidence
all Confidential Information, (2) not disclose Confidential Information to
anyone except employees of the Company authorized to receive it and third
parties to whom such disclosure is specifically authorized, and (3) not
use any Confidential Information for any purpose other than performance of
services under this Agreement without prior written permission from the
Company.


 


(b)           If
Employee is served with any subpoena or other compulsory judicial or
administrative process calling for production or disclosure of Confidential
Information or if Employee is otherwise required by law or regulation to
disclose Confidential Information, Employee will immediately, and prior to
production or disclosure, notify the Company and provide it with such
information as may be necessary in order that the Company may take such action
as it deems necessary to protect its interest.


 


(c)           The
provisions of this Section 6 shall survive termination of this
Agreement.


 


7.             Non-competition and
Non-solicitation.


 


(a)           Employee
agrees that for a two-year period from the effective date of the termination of
Employee’s employment with the Company, Employee shall not directly or
indirectly engage in or have any ownership interest in, or participate in the
financing, operation, management or control of, any person, firm, corporation
or business that engages in any activity customarily associated with the
Company’s ordinary course of business at the time of such termination anywhere
in the world; provided, however, that this provision shall not
prohibit Employee from owning up to five percent (5%) of any class of
outstanding bonds, preferred stock or shares of common stock of any such entity
or from employment with any institute of higher learning.


 


(b)           For
a period of two (2) years following termination of employment with the
Company for any reason, except with the express written consent of the Company,
Employee agrees to refrain from directly or indirectly recruiting, hiring or
assisting anyone else to hire, or otherwise counseling to discontinue
employment with the Company, any person then employed by the Company or its
subsidiaries or affiliates.


 


(c)           In
the event that the provisions of this Section 7 should ever be deemed
to exceed the duration or geographic limitations or scope permitted by
applicable law, then such provisions shall be reformed to the maximum time or
geographic limitations or scope, as the case may be, permitted by applicable
laws.


 


(d)           The
provisions of this Section 7 shall survive termination of this
Agreement and the term of employment.


 

















 


8.             Covered Work.


 


(a)           All
rights, title and interest to any Covered Work that Employee makes or conceives
(whether alone or with others) while employed by the Company, belong to the
Company. This Agreement operates as an actual assignment of all rights in
Covered Work to the Company. “Covered Work” means products and Inventions that
relate to the actual or anticipated business of the Company or any of its
subsidiaries or affiliates, or that result from or are suggested by a task
assigned to Employee or work performed by Employee on behalf of the Company or
any of its subsidiaries or affiliates, or that were developed in whole or in
part on the Company time or using the Company’s equipment, supplies or
facilities. “Inventions” mean ideas, improvements, designs, computer software,
technologies, techniques, processes, products, chemicals, compounds, materials,
concepts, drawings, authored works or discoveries, whether or not patentable or
copyrightable, as well as other newly discovered or newly applied information
or concepts. Attached hereto as Exhibit D is a description of any
product or Invention in which Employee had or has any right, title or interest,
which is not included within the definition of “Covered Work” or which is
otherwise excluded from the restrictions set forth in this Section 8.


 


(b)           Employee
shall promptly reveal all information relating to Covered Work and Confidential
Information to an appropriate officer of the Company and shall cooperate with
the Company, and execute such documents as may be necessary, in the event that
the Company desires to seek copyright, patent or trademark protection
thereafter relating to same.


 


(c)           In
the event that the Company requests that Employee assist in efforts to defend
any legal claims to patents or other right, the Company agrees to reimburse
Employee for any reasonable expenses Employee may incur in connection with such
assistance. This obligation to reimburse shall survive termination of this
Agreement and the term of employment.


 


(d)           The
provisions of this Section 8 shall survive termination of this
Agreement and the term of employment.


 


9.             Return of Inventions,
Products and Documents.  Employee
acknowledges and agrees that all Inventions, all products of the Company and
all originals and copies of records, reports, documents, lists, drawings,
memoranda, notes, proposals, contracts and other documentation related to the
business of the Company or containing any information described in this Section 9  shall be the sole and exclusive property of
the Company and shall be returned to the Company immediately upon termination
of Employee’s employment with the Company or upon the written request of the
Company. The provisions of this Section 9 shall survive termination
of this Agreement and the term of employment


 


10.          Injunction.  Employee agrees that it would be difficult to
measure damages to the Company from any breach by Employee of Sections 6, 7,
8 and/or 9 of this Agreement, and that monetary damages would be an
inadequate remedy for any such breach. Accordingly, Employee agrees that if
Employee shall breach Sections 6, 7, 8 and/or 9 of this
Agreement, the Company shall be entitled, in addition to all other remedies it
may have at law or in equity, to an injunction or other appropriate orders to
restrain any such breach without showing or proving any actual 


 

















 


damage sustained by the Company. The provisions of this Section 10
shall survive termination of this Agreement and the term of employment.


 


11.          Obligations to Others.  Except for items fully disclosed in writing
to the Company, Employee represents and warrants to the Company that (i) Employee’s
employment by the Company does not violate any agreement with any prior
employer or other person or entity, and (ii) Employee is not subject to
any existing confidentiality or non-competition agreement or obligation, or any
agreement relating to the assignment of Inventions except as has been fully
disclosed in writing to the Company. 
Notwithstanding the foregoing, the Company and Employee do not intend
for any provision of this Agreement to conflict with any obligations or rights
the parties may have under any NIH grant. 
If any provision of such provision is found to conflict with any
obligations or rights the parties may have under any NIH grant, the parties
agree that any such conflicting provision shall be deemed modified to the
minimum extent required to bring it in compliance with the NIH grant and the
parties agree to comply with all requirements reasonably imposed by any
applicable NIH grant; provided, however,
in the event such NIH requirements are deemed by the Company, in its reasonable
discretion, to impose unreasonable or otherwise onerous burdens on the Company,
the parties agree to terminate the NIH grant upon request of the Company.


 


12.          Termination.


 


(a)           Employee
may voluntarily terminate his employment with the Company upon giving the
Company sixty (60) days written notice.


 


(b)           The
Company may terminate Employee’s employment without Cause (as defined below)
upon giving Employee thirty (30) days written notice of termination.


 


(c)           Employee’s
employment with the Company shall terminate upon the occurrence of any one of
the following:


 


(i)            Employee’s
death;


 


(ii)           The
effective date of a notice sent to Employee stating the Board’s determination
made in good faith and after consultation with a qualified physician selected
by the Board, that Employee is incapable of performing his duties under this
Agreement, with or without reasonable accommodation, because of a physical or
mental incapacity that has prevented Employee from performing such full-time
duties for a period of ninety (90) consecutive calendar days and the
determination that such incapacity is likely to continue for at least another
ninety (90) days; or


 


(iii)          The
effective date of a notice sent to Employee terminating Employee’s employment
for Cause.


 

















 


(d)           “Cause”
means the occurrence of one or more of the following events:


 


(i)            Employee’s
willful and repeated failure or refusal to comply in any material respect with
the reasonable lawful policies, standards or regulations from time to time
established by the Company, or to perform his duties in accordance with this
Agreement after notice to Employee of such failure and after Employee has been
given a reasonable period of time to cure such failure to comply; or


 


(ii)           Employee
engages in criminal conduct or engages in misconduct that is materially
detrimental to the reputation, character or standing of the Company.


 


13.          Termination
Compensation.


 


(a)           Upon
Employee’s voluntary termination of employment other than voluntary termination
with Good Reason (as defined below), the Company shall pay to Employee all
compensation due to the date of termination, but shall have no further
obligation to Employee hereunder in respect of any period following
termination.


 


(b)           Upon
the death of Employee, the Company shall pay to Employee’s estate or such other
party who shall be legally entitled thereto, all compensation due at the date
of death, and an additional amount equal to compensation at the rate set forth
in this Agreement or then current annual salary rate, whichever is greater,
from the date of death to the final day of the month following the month in which
the death occurs.


 


(c)           Upon
termination of Employee’s employment by the Company other than for Cause, or
upon Employee’s voluntary termination of employment for Good Reason the Company
shall pay to Employee six (6) months of Base Compensation if Employee is
terminated before the one year anniversary of his employment with the Company,
and shall pay Employee twelve (12) months of Base Compensation if Employee is
terminated on or after the one year anniversary of his employment with the
Company.


 


(d)           Amounts
payable under this Section 13 shall be net of amounts required to
be withheld under applicable law and amounts requested to be withheld by
Employee.


 


(e)           As
used herein, “Good Reason” shall
mean the termination by Employee upon the occurrence of any of the below
described events. The Employee must provide notice to the Company of the
existence of such event within ninety (90) days of the first occurrence of such
event, and the Company will have thirty (30) days to remedy the condition, in
which case no Good Reason shall exist. 
If the Company fails to remedy the condition within such thirty (30) day
period, the Employee must terminate employment within two (2) years of the
first occurrence of such event.  The
events which constitute a Good Reason termination are:


 

















 


(i)                    The assignment of a different title
or change that results in a material reduction in Employees duties or
responsibilities;


 


(ii)                   A reduction by the Company in
Employee’s Base Compensation, other than a salary reduction that is part of a
general salary reduction affecting employees generally and provided the
reduction is not greater, percentage-wise, than the reduction affecting other
employees generally or failure to provide an annual increase in Base
Compensation commensurate with other Employees; provided,
however, in determining whether to provide an annual increase in
Base Compensation commensurate with an annual increase provided to other
Employees, the Company may take into
account factors such as market levels of compensation, Employee’s overall
performance, and other factors reasonably considered by the Company’s
compensation committee and/or Board of Directors, so long as such determination
is not made in bad faith with the intent to discriminate against Employee;
or


 


(iii)                  Relocation of Employee’s principal
place of business of greater than seventy-five (75) miles from its then
location; provided, however, the first such relocation in connection with the
concurrent relocation of the Company’s primary research facility shall not
constitute Good Reason hereunder.


 


As a condition of payment of the amounts set forth in this Section 13,
if requested by Company Employee agrees to enter into a Separation and Release
Agreement substantially in the form attached hereto as Exhibit E.


 


(f)            As used herein, “Change of Control” means the
occurrence of any one of the following events: 
(i) any person becomes the beneficial owner of twenty-five percent
(25%) or more of the total number of voting shares of the Company; (ii) any
person (other than the persons named as proxies solicited on behalf of the
Board of Directors of the Company) holds revocable or irrevocable proxies
representing twenty-five percent (25%) or more of the total number of voting
shares of the Company; (iii) any person has commenced a tender or exchange
offer, or entered into an agreement or received an option, to acquire
beneficial ownership of twenty-five percent (25%) or more of the total number
of voting shares of the Company; and (iv) as the result of, or in
connection with, any cash tender or exchange offer, merger, or other business
combination, sale of assets, or any combination of the foregoing transactions,
the persons who were directors of the Company before such transactions shall
cease to constitute at least two-thirds (2/3) of the Board of Directors of the
Company or any successor entity.


 


14.          Notice.  Unless otherwise provided herein, any notice,
request, certificate or instrument required or permitted under this Agreement
shall be in writing and shall be deemed “given” upon personal delivery to the
party to be notified or three business days after deposit with the United
States Service, by registered or certified mail, addressed to the party to
receive notice at the address set forth above, postage prepaid. Either party may
change its address by notice to the other party given in the manner set forth
in this Section.


 
















 


15.          Entire Agreement.  This Agreement constitutes the entire
agreement between the parties and contains all the agreements between them with
respect to the subject matter hereof. It also supersedes any and all other
agreements or contracts, either oral or written, between the parties with
respect to the subject matter hereof;  provided, however, in the event any of Sections 6, 7, 8,
9, or 10 of this Agreement is found enforceable in any way, then
such section shall be amended to the extent necessary to conform to applicable
law.


 


16.          Modification.  Except as otherwise specifically provided,
the terms and conditions of this Agreement may be amended at any time by mutual
agreement of the parties, provided that before any amendment shall be valid or
effective, it shall have been reduced to writing and signed by an authorized
representative of the Company and Employee.


 


17.          No Waiver.  The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations, shall not be a waiver by such party of
its right to exercise any such or other right, power or remedy or to demand
compliance.


 


18.          Severability.  In the event that any section or
provision of this Agreement shall be held to be illegal or unenforceable, such
section or provision shall be severed from this Agreement and the entire
Agreement shall not fail as a result, but shall otherwise remain in full force
and effect.


 


19.          Assignment.  This Agreement shall be binding upon and
inure to the benefit of the Company and its successors and assigns, and shall
be binding upon Employee, his administrators, executors, legatees, and heirs.
In that this Agreement is a personal services contract, it shall not be
assigned by Employee.


 


20.          Dispute Resolution.  Except as otherwise provided in Section 10,
the Company and Employee agree that any dispute between Employee and the
Company or its officers, directors, employees, or agents in their individual or
Company capacity of this Agreement, shall be submitted to a mediator for
nonbinding, confidential mediation. If the matter cannot be resolved with the
aid of the mediator, the Company and Employee mutually agree to arbitration of
the dispute. The arbitration shall be in accordance with the then-current
Employment Dispute Resolution Rules of the Arbitration Service of Portland
(“ASP”) before an arbitrator who is licensed to practice law in the State of
Oregon. The arbitration shall take place in or near Portland, Oregon. Employee
and the Company will share the cost of the arbitration equally, but each will
bear their own costs and legal fees associated with the arbitration; provided, however, if any party prevails on a statutory
claim, which affords the prevailing party attorneys’ fees, or if there is a
written agreement providing for attorneys’ fees, the arbitrator may award
reasonable attorneys’ fees.  The Company
and Employee agree that the procedures outlined in this provision are the
exclusive method of dispute resolution.


 


21.          Attorneys’ Fees.  In the event suit or action is instituted
pursuant to Section 10 or Section 20 of this Agreement,
the prevailing party in such proceeding, including any appeals thereon, shall
be awarded reasonable attorneys’ fees and costs.


 

















 


22.          Applicable Law.  This Agreement shall be construed and
enforced under and in accordance with the laws of the State of Oregon.


 


23.          Section 409A.


 


(a)           It is the intention of the parties to this Agreement
that no payment or entitlement pursuant to this Agreement will give rise to any
adverse tax consequences to Employee or the Company with regard to Section 409A
of the Internal Revenue Code of 1986 (“Section 409A”). This Agreement
shall be interpreted to that end and consistent with that objective. The
Company and the Employee shall, to the extent necessary to comply with Section 409A
and permitted thereunder, agree to act reasonably and in good faith to mutually
reform the provisions of this Agreement to avoid the application of the
additional tax and interest under Section 409A(a)(1)(B), provided that any
such reformation shall not negatively impact the economics of the Company or
the Employee hereunder. Notwithstanding any other provision herein, if Employee
is a “specified employee,” as defined in, and pursuant to, Treasury Regulation Section 1.409A-1(i) or
any successor regulation, on the date of termination, no payment of any “deferred
compensation”, as defined under Treasury Regulation Section 1.409A or any
successor regulation, shall be made to Employee during the period lasting until
the earlier of six (6) months from the date of termination or upon
Employee’s death.  If any payment to
Employee is delayed pursuant to the foregoing sentence, such payment instead
shall be made on the first business day following the expiration of the six (6) month
period referred to in the prior sentence or, if in the case of Employee’s
death, promptly thereafter.


 


(b)           Except as otherwise specifically provided in
this Agreement, if any reimbursement to which the Employee is entitled under
this Agreement would constitute deferred compensation subject to Section 409A
of the Code, the following additional rules shall apply:  (i) the reimbursable expense must have
been incurred, except as otherwise expressly provided in this Agreement, during
the term of this Agreement; (ii) the amount of expenses eligible for
reimbursement during any calendar year will not affect the amount of expenses
eligible for reimbursement in any other calendar year; (iii) the
reimbursement shall be made not later than December 31 of the calendar
year following the calendar year in which the expense was incurred; and (iv) the
Employee’s entitlement to reimbursement shall not be subject to liquidation or
exchange for another benefit.


 


(c)           With regard to any installment payment, each
installment thereof shall be deemed a separate payment for purposes of Section 409A
of the Code.


 


24.          Counterparts.  This Agreement may be signed in two
counterparts, each of which shall be deemed an original and both of which shall
together constitute one agreement.


 


[SIGNATURE PAGE FOLLOWS]


 

















 


IN WITNESS WHEREOF, AVI BioPharma, Inc. has caused this Agreement
to be signed by its duly authorized representative, and Employee has hereunder
set his name as of the date of this Agreement.


 


 


	
   

  	
  COMPANY: 
  AVI BioPharma, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
  Leslie Hudson, PhD, Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EMPLOYEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Ryszard Kole, PhD

  



 

















 


Exhibit A


 


List
of Offices Held


 


·      Senior Vice President of Discovery Research of AVI BioPharma, Inc.


 


·      Principal Investigator on NIH grant-funded research to be conducted at
the University of North Carolina at Chapel Hill (“UNC”), including any
necessary affiliation with UNC, but only to the extent that such roles do not
constitute more than 5% of Employee’s professional time, calculated on a
monthly basis.


 

















 


Exhibit B


 


2002
Equity Incentive Plan


 

















 


Exhibit C


 


Form Of
Stock Option Agreement


 

















 


Exhibit D


 


Inventions
Excluded from Covered Works


 


·      Covered Works also shall not
include any work product arising out of the NIH grant, the ownership of, under
the terms of such grant, is reserved for parties other than Employee or the
Company; provided, however, to the extent the
terms of such NIH grant provide or allocate certain ownership rights or rights
to use such work product to Employee, to the extent thereof such work product
shall be Covered Works.


 


·      Additional Exclusions: to be
provided by Ryszard Kole


 

















 


Exhibit E


 


SEPARATION AND RELEASE AGREEMENT


 


THIS SEPARATION AND RELEASE AGREEMENT (“Agreement”)
is between Richard Kole (“Employee”) and AVI BioPharma, Inc. (“Employer”),
and is effective eight (8) days after Employee signs this Agreement (“Effective
Date”).


 


The parties agree as follows:


 


1.             Resignation. Employee
resigned his position as Employer’s [Title] effective [effective date of
termination] (the “Resignation Date”). 
Employee has been paid his salary and other compensation through the
Resignation Date, less all lawful or required deductions.


 


2.             Consideration.   In consideration of  Employee’s agreements hereunder, Employer shall pay to
Employee the amounts set forth and described in that certain Employment
Agreement dated effective the       day of                  ,
2008.


 


3.             Return of Employer
Property. Employee represents that he has returned all Employer
property in his possession or under his control, including but not limited to
keys, credit cards, files, laptop computer and any and all Employer documents.


 


4.             Confidentiality. The
parties will use reasonable efforts to keep the terms of this Agreement
confidential.  Employee may disclose the
terms of this Agreement to his immediate family.  Employer may disclose the terms of this
Agreement to its officers and managers. 
Either party may disclose the terms of this Agreement to their
respective attorneys, accountants, financial advisers, auditors, or similar
advisors, or in response to government requests.  Third persons informed of the terms of this
Agreement shall in turn be advised of this confidentiality provision and
requested to maintain such confidentiality.


 


5.             Release.


 


5.1           In exchange for the consideration paid to Employee
as set forth in this Agreement, Employee forever releases and discharges
Employer, any of Employer-sponsored employee benefit plans in which Employee
participates, or was participating in, (collectively the “Plans”) and all of
their respective officers, members, managers, partners, directors, trustees,
agents, employees, and all of their successors and assigns (collectively “Releasees”)
from any and all claims, actions, causes of action, rights, or damages,
including costs and attorneys’ fees (collectively “Claims”) which Employee may
have arising out of his employment (including Claims that may arise out of Employee’s
employment agreement), on behalf of himself, known, unknown, or later
discovered which arose prior to the date Employee signs this Agreement.  This release includes but is not limited to,
any Claims under any local, state, or federal laws prohibiting discrimination
in employment, including without limitation the federal civil rights acts,
Oregon Revised Statutes Chapter 659A, the Americans with Disabilities Act, the
Age Discrimination in Employment Act, or Claims under the Employee Retirement
Income Security Act, or Claims alleging any legal restriction on Employer’s
right to terminate its employees, any Claims Employee has relating to his
rights to or against any of the Plans, or personal injury Claims, including
without limitation 


 

















 


wrongful
discharge, breach of contract, defamation, tortious interference with business
expectancy, constructive discharge, or infliction of emotional distress.  Employee represents that he has not filed any
Claim against Employer or its Releasees, he has no knowledge of any facts that
would support any Claim by Employee against Employer or by a third party
against Employer, and that he will file a Claim at any time in the future
concerning Claims released in this Agreement; provided, however, that this will
not limit Employee from filing a Claim to enforce the terms of this Agreement.


 


5.2           In consideration of the promises of Employee as set
forth herein, Employer does hereby, and for its successors and assigns,
release, acquit and forever discharge Employee from any and all actions, causes
of action, obligations, costs, expenses, damages, losses, claims, liabilities,
suits, debts, and demands (including attorneys’ fees and costs actually
incurred), of whatever character in law or in equity known or unknown,
suspected or unsuspected, from the beginning of time to the date of execution
hereof.


 


6.             Non-disparagement. Employee and Employer each agree not to make
disparaging statements about each other, except in the case of Employer
statements that are required under applicable federal or state securities laws
or applicable rules and regulations of any exchange on which Employer’s
stock is traded.


 


7.             Consideration and Revocation Periods. Employee understands and acknowledges the
significance and consequences of this Agreement, that it is voluntary, that it
has not been given as a result of any coercion, and expressly confirms that it
is to be given full force and effect according to all of its terms, including
those relating to unknown Claims. 
Employee was hereby advised of his right to seek the advice of an
attorney prior to signing this Agreement. 
Employee acknowledges that he has signed this Agreement only after full
reflection and analysis. Although he is free to sign this Agreement before
then, Employee acknowledges he was given at least 21 days after receipt of this
document in which to consider it (the “Consideration Period”).  If Employee executes this Agreement prior to
the end of the Consideration Period, Employee hereby waives any rights
associated therewith. Employee may revoke this Agreement seven (7) days
after signing it and forfeit all benefits described in Section 2 of this
Agreement. Employee and Employer agree that any changes made to this Agreement
during the Consideration Period as a result of negotiations between the parties
do not restart the running of the Consideration Period.


 


8.             No Liability. This
Agreement shall not be construed as an admission by either party that it acted
wrongfully with respect to the other.


 


9.             Severability. If any of the provisions of this Agreement are held
to be invalid or unenforceable, the remaining provisions will nevertheless
continue to be valid and enforceable.


 


10.           Entire Agreement. This Agreement represents and contains the entire
understanding between the parties in connection with its subject matter.  All other prior written or oral agreements or
understandings are merged into and superseded by this Agreement.  Employee acknowledges that in signing this
Agreement, he has not relied upon any representation or statement not set forth
in this Agreement made by Employer or any of its representatives.


 

















 


11.           Attorney Fees. If any suit or action is filed by either party to
enforce this Agreement or otherwise with respect to the subject matter hereof,
the prevailing party shall be entitled to recover reasonable attorney fees
incurred in preparation or in prosecution or defense of such suit or action as
fixed by the trial court, and if any appeal is taken from the decision of the
trial court, reasonable attorney fees as fixed by the appellate court.


 


12.           Choice of Law. This Agreement is made and shall be construed and
performed under the laws of the State of Oregon.


 


PLEASE READ CAREFULLY.  THIS AGREEMENT INCLUDES A RELEASE OF CERTAIN
KNOWN OR UNKNOWN CLAIMS.


 


 


	
  DATED this       day of        ,
  200X.

  	
   

  	
  DATED this     day of        ,
  200X.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  AVI BioPharma, Inc. 

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Ryszard Kole, PhD

  
	
   

  	
   

  	
   

  
	
  Title: